Election petition--To be presented in person--Mandatory Provision--Non compliance would result in dismissal of petition

Ram Chand Gupta, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 15.12.2010, Annexure P5, passed by learned Additional Civil Judge, Senior Division, Palwal, vide which election petition filed by the petitioner under Section 176(4) of the Haryana Panchayati Raj Act, 1994 (hereinafter to be called as Haryana Act) to declare him as Sarpanch, Gram Panchayat, Gopalgarh, Tehsil Hodal, District Palwal in place of respondent No.1-Mukhtyar Singh, who has been illegally and arbitrarily declared as Sarpanch by Returning Officer by holding draw of lots, was dismissed on the ground of maintainability.

2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Additional Civil Judge, Senior Division, Palwal.

3. Facts relevant for the decision of present revision petition are that election of Gram Panchayat, Gopalgarh, Tehsil Hodal, District Palwal was held on 6.6.2010 in pursuance of declaration by the Government of Haryana in the month of May 2010. Petitioner and respondent No.1 to 8 intend to contest the election for the post of Sarpanch of Gram Panchayat Gopalgarh. Respondent No.l was declared as elected Sarpanch of the Gram Panchayat. Petitioner filed CWP No.10971 of 2010 before this Court challenging the election, which was disposed of with liberty to file election petition under Section 176(4) of the Haryana Act. Thereafter, the present petition was filed by the petitioner, notice of which was given to respondents, who filed an application, Annexure P3, for dismissal of petition on the plea that the same has not been filed by the petitioner in person as required by the law. The application was contested by present petitioner. Learned Additional Civil Judge, Senior Division, Palwal, allowed the said application filed by respondent and dismissed the election petition filed by present petitioner on the ground of maintainability by observing as under:-

"12.In the case in hand, present petition was filed on 23.6.10 before Vacation Judge, Palwal by Sh. R.K.Goel, Advocate for the petitioner. Notice to the respondents was ordered to be issued for 23.7.10 and the petitioner was also directed to appear before learned Additional Civil Judge (Senior Division) Palwal for proper assignment of the case. On 23.7.10 the petitioner did not appear personally in the court, rather Sh. R.K.Goel, Advocate, for petitioner appeared and his presence was marked at the time of assigning the case to this Court and thereafter after assignment presence of Sh. R.K.Goel, Advocate was marked before this Court also on 23.7.10. Thus, from the zimni orders dated 23.6.10 and 23.7.10 it is very much clear that petitioner was not present at the time of presentation of the present petition as well as at the time of assignment of the present petition to this Court. After examining the provisions of Haryana Panchayati Raj Act and representation of People Act and after going through the case laws relied upon by learned counsel for the applicant/respondent No.3, this Court has come to the conclusion that present petition is not maintainable as the same has not been presented by the petitioner personally. So the present petition must fail on this account alone. Accordingly, the petition is dismissed for non-compliance of provisions of the Haryana Panchayati Raj Act. There is no order as to cost. File be consigned to the record room after due compliance."

4. It has been vehemently contended by learned counsel for the petitioner that as per Section 176 of the Haryana Act, there is no requirement that the petition has to be presented in person and rather the same can be presented through counsel as well. It is further contended that even if it is taken that petition was to be presented in person, the petitioner was present in person when the petition was presented and, however, his presence was not marked and the